United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
matter comes before the court upon defendant Rebecca
Zehring's pro se motions requesting a reduction in
sentence under 28 U.S.C. § 2255 (Doc. 632) and 18 U.S.C.
§ 3582(c)(2) (Doc. 649). Defendant claims that she is
entitled to a sentence reduction based on her minor role in
accordance with Amendment 794 as well as prosecutorial
misconduct because the government recorded the confidential
meetings between defendant and her attorney while she was
incarcerated at Corrections Corporation of America
(“CCA”) in Leavenworth, Kansas. For the reasons
set forth below, the court dismisses defendant's motions.
April 16, 2013, defendant pleaded guilty to conspiracy to
possess with the intent to distribute and distribute 50 grams
or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A)(viii) and 846. The court sentenced
defendant to a term of 105 months imprisonment- which was
later reduced to 84 months under Amendment 782. Judgment was
entered on September 25, 2013, and defendant did not appeal.
Defendant filed the instant 28 U.S.C. § 2255 and 18
U.S.C. § 3582(c)(2) motions on October 7 and December 5,
Defendant's Waiver and Discussion
defendant's plea agreement, defendant waived the right to
challenge her sentence in a collateral attack under §
2255 (except as limited by United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)), 18
U.S.C. § 3582(c)(2), and a motion brought under
Fed.R.Civ.P. 60(b). Defendant's waiver also stated that
“defendant in no way waives any subsequent claims with
regards to ineffective assistance of counsel or prosecutorial
misconduct.” (Doc. 258, at 9.)
government seeks to enforce this waiver as to defendant's
claims challenging her sentence. Generally, a knowing and
voluntary waiver of 18 U.S.C. § 2255 rights is
enforceable. United States v. Morrison, 415 F.
App'x 860, 862 (10th Cir. 2011) (citing
Cockerham, 237 F.3d at 1183). District courts
enforce these waivers so long as: (1) the collateral attack
falls within the scope of the waiver; (2) the defendant
knowingly and voluntarily waived his right to collateral
review; and (3) enforcing the waiver would not result in a
miscarriage of justice. United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004).
defendant's reply, she claims that she was improperly
medicated during her stay at CCA pending trial in this case
and therefore, her waiver was not knowingly and voluntarily
made due to her mental incapacity. Defendant also alleges
prosecutorial misconduct-an exception to the waiver contained
in her plea agreement.
for the sake of argument, that defendant's waiver does
not bar her current motions challenging her sentence,
defendant would be ineligible for relief. Defendant's
§ 2255 motion is untimely because it was filed more than
a year after her conviction and sentence became final.
See generally United States v. Harrison, No.
16-5167, 2017 WL 710426, at *2 (10th Cir. Feb. 23, 2017)
(Amendment 794 does not constitute a “new fact”
under § 2255(f)(4)). Amendment 794 clarified that
“[t]he fact that a defendant performs an essential or
indispensable role in the criminal activity is not
determinative” and added a non-exhaustive list of
factors for a court to consider when determining whether to
apply a minor role reduction. U.S.S.G. § 3B1.2 cmt.
n.3(C) (2015). The Tenth Circuit has not held that Amendment
794 applies retroactively to cases on collateral review.
See United States v. Yohe, No. 13-40074-03-JAR, 2017
WL 957428, at *2 (D. Kan. Mar. 13, 2017) (distinguishing
United States v. Quintero-Leyva, 823 F.3d 519, 523
(9th Cir. 2016), and noting that “no court has
concluded that Amendment 794 applies to cases on collateral
review, [thus, ] § 2255(f)(3) does not apply”);
United States v. Aikman, No. 09-10097-01-JTM, 2016
WL 7210721, at *1 (D. Kan. Dec. 13, 2016) (same).
Furthermore, the United States Sentencing Commission has not
specifically designated Amendment 794 for retroactive
application. Thus, even if this court were to construe
defendant's motion as one filed under 18 U.S.C. §
3582(c)(2), a reduction in sentence is not permitted. See
Aikman, 2016 WL 7210721 at *1 (“Arguments grounded
on amendments to the Guidelines are properly brought under 18
U.S.C. § 3852, not as § 2255 claims.”);
see also U.S.S.G. § 1B1.10 (if amendment not
listed in subsection 1B1.10(c), reduction not consistent with
“one-year statute of limitations [under § 2255(f)]
is subject to equitable tolling but only ‘in rare and
exceptional circumstances.'” Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Defendant
bears the burden of showing equitable tolling is merited.
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
does not-and cannot-claim that she is actually innocent.
United States v. Robinson, No. 10-40037, 2013 WL
5874012, at *3 (D. Kan. Oct. 30, 2013) (neither the Supreme
Court nor the Tenth Circuit has ruled that the actual
innocence of a sentence exception announced in Sawyer v.
Whitley, 505 U.S. 333, 336 (1992), extends to the
noncapital sentencing context); see also Selsor v.
Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994) (the
petitioner cannot be actually innocent of the sentence
enhancement unless he is actually innocent of the crime
court also finds that defendant fails to demonstrate
diligence in pursuing her claim, which is required for
showing cause and prejudice to justify equitable tolling.
“To establish ‘cause' a defendant must show
some external objective factor-such as governmental
interference, unavailability of the relevant factual or legal
basis, or ineffective assistance of counsel-prevented him
from [timely] raising the issue . . . .” See
Robinson, 2013 WL 5874012 at *4 (citing Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Although Amendment
794 clarified the factors to consider for a minor-role
adjustment, it did not substantively change § 3B1.2;
thus defendant presents a nonconstitutional claim. See
United States v. Casas, 632 F. App'x 1003, 1004
(11th Cir. 2015). Defendant was required to challenge the
denial of a minor-role adjustment at her original sentencing
and/or on direct appeal. See Burke v. United States,
152 F.3d 1329, 1331 (11th Cir. 1998) (citing Reed v.
Farley, 512 U.S. 339, 348 (1994)).
“[N]onconstitutional claims can be raised on collateral
review only when the alleged error constitutes a fundamental
defect which ...